On Tuesday, the U.S. Supreme Court will hear oral arguments on whether the Constitution requires states to grant same-sex marriage licenses and whether states must recognize gay marriages legally performed in another state.
The court’s decision will have a major impact on the right to self-government.
Currently, gay marriage is legal in 37 states. Thirty-one states, including California, voted to retain traditional marriage, but a handful of federal judges overturned many of these efforts – silencing the voice of millions. In only eight states has same-sex marriage been enacted by the legislature and in only three by a vote of the people. Proposition 8, California’s traditional marriage measure approved by 7 million voters in 2008, was overturned by a single federal judge in San Francisco.
Last November, the U.S. Court of Appeals for the Sixth Circuit upheld state bans on gay marriage in Ohio, Michigan, Kentucky and Tennessee. This decision broke with other circuit courts, so the case is now before the high court.
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A key question will be: Who decides? The people through the legitimate democratic processes enshrined in the Constitution – or a handful of unelected federal judges?
Under our system of federalism, which reserves powers not delegated to the federal government to the states or to the people, authority over marriage laws has always been the “exclusive province of the States,” as a prior high court decision put it.
In 2013, the Supreme Court, in fact, used this principle to strike down part of the 1996 federal Defense of Marriage Act – ruling that gay and lesbian couples married in New York, where same-sex marriage is legal, are entitled to federal government benefits just as married heterosexual couples are.
The court would thus have “to make a huge, illogical leap” to suddenly reverse its position and declare a federal right to same-sex marriage, Proposition 8 general counsel Andrew Pugno wrote recently to supporters.
But logic has not been the hallmark of the federal judiciary’s virtual stampede to legalize gay marriage across the nation. The same day that the high court upheld New York’s authority to authorize same-sex marriage, it refused to hear an appeal on Proposition 8 based on a technicality – thus ignoring the same right of states that voted to retain traditional marriage.
Proponents of gay marriage claim that the “equal protection” clause of the Constitution gives them the right to wed. Support for traditional marriage, they say, is irrational and based on “animus” against gays and lesbians.
But the issue is not about equal treatment under the law. It’s about redefining marriage – and who decides. The Sixth Circuit found it completely “rational” for states to use “caution” before changing such a universal norm.
And is it “animus” to support marriage between a man and a woman, as it has been known throughout the history and cultures of the world – Christian, Jewish, Muslim and others – and even defended by President Barack Obama as recently as 2012?
In fact, if the high court legalizes gay marriage nationally based on the premise of bias against gay people, it would impugn the motives of millions of Americans and could threaten free speech and religious freedom rights. One need look no further than the threatened boycotts against Indiana over its religious-freedom-protection law and Mozilla Chief Executive Brendan Eich’s resignation under pressure last year because of a personal donation he made to the Proposition 8 campaign.
If people are changing their minds and more favor same-sex marriage, as proponents claim and some polls indicate, why not allow change to be made through the legitimate processes of democracy – rather than try to force it through the courts by mischaracterizing the sincerely held beliefs of fellow citizens?
A victory won by a fair fight is accepted. One that is rigged is resented. If gay marriage is imposed on the nation, it will likely be by a 5-4 margin. As in California, one judge’s opinion could strip away the voice of millions of Americans.
And the social divide that the high court would purportedly solve by nationalizing gay marriage will not end, but deepen.
Margaret A. Bengs is a former Sacramento Bee contributing columnist and political speechwriter who lives in Carmichael. Reach her at email@example.com.